C.M.J. v. L.M.C.

• Decision Date: 15 October 2014
• Docket Number: No. 2014–CJ–1119.,2014–CJ–1119.
• Citation: 156 So.3d 16
• Parties: C.M.J. v. L.M.C., wife of C.M.J.
• Court: Louisiana Supreme Court

156 So.3d 16

C.M.J.
v.
L.M.C., wife of C.M.J.

No. 2014–CJ–1119.

Supreme Court of Louisiana.

Oct. 15, 2014.
Rehearing Denied Dec. 8, 2014.

156 So.3d 17

Lowe, Stein, Hoffman, Allweiss & Hauver, Robert Charles Lowe, Suzette Marie Smith, New Orleans, LA, for Applicant.

Richard Ducote, PC, Richard Lynn Ducote, Metairie, LA, for Respondent.

Opinion

CLARK, Justice.^*

This case concerns a highly contested custody dispute over three minor children. After an eleven-day trial and extensive written reasons for judgment, the trial court awarded sole custody of the children to the father and conditionally reserved visitation privileges to the mother. The First Circuit Court of Appeal reversed and remanded for a new trial. The main issue before us is whether the court of appeal erred in finding the trial court abused its discretion in prohibiting the children from testifying at trial and not relying on a sexual abuse evaluation. After careful consideration of the record before us, we find no abuse of the trial court's great discretion nor do we find any manifest error by the trial court in this fact intensive controversy. We reverse the court of appeal's judgment and reinstate the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

C.M.J., (hereinafter, “the father”), and L.M.C., (hereinafter, “the mother”), were married in 1996. They had three children: C.T.J., a son, born in 1998; J.A.J., a son, born in 2001; and J.T.J., a daughter, born in 2007. The father filed for divorce in May 2011.

Incidental to his divorce petition, the father sought sole custody of the three minor children.¹ The father alleged that the mother (1) removed the children from the family home for extended periods of time on multiple occasions without giving notice to him; (2) kept the boys out of school for fifteen days straight; (3) refused the father access to his children; (4) falsely accused him in two different criminal jurisdictions of sexually abusing his then three-year old daughter, and kept those allegations a secret from him; (5) unnecessarily subjected the daughter to an intimate physical examination and forensic interview; (6) falsely accused the father of drugging both the mother and the children; (7) engaged in questionable parenting practices, including paying the older brothers to bathe their younger sister; (8)

156 So.3d 18

believed a medical conspiracy existed wherein medical professionals intended to hurt the daughter; and (9) acted with the intent of alienating the children from the father.

What followed were several months of highly contentious litigation, during which the mother filed several petitions for protection from abuse, averring physical and sexual abuse, only to voluntarily dismiss them herself. Further, at a pre-trial hearing, amidst these allegations, the mother stipulated to joint custody of the children. Also at this pre-trial hearing, the parties stipulated that they and the minor children would undergo a sexual abuse evaluation and a mental health evaluation by Dr. Alicia Pellegrin, a clinical psychologist, pursuant to La.R.S. 9:331.

The parties shared equal physical custody of the children until October 2011. On October 25, 2011, the mother filed a motion for emergency ex parte custody and injunction based on the recommendation of a Children's Hospital nurse, Ann Troy, that the three children receive “protective placement” away from their father, the “alleged perpetrator.” The circumstances of this recommendation are as follows: the mother alleged that the daughter complained to her that the father hurt her rear end. Based on this alleged complaint, the mother brought the daughter to Children's Hospital in New Orleans, where she was examined by Nurse Troy. Nurse Troy referred the children to a social worker employed by the Department of Children and Family Services, Ashleigh Stevens. Ultimately, based on communication to the trial court by the Department of Children and Family Services, the motion for emergency custody was signed by the duty judge in favor of the mother.

The father later discovered that a videotape was made by the mother on October 4, 2011—predating the visit to Children's Hospital and the subsequently filed motion for emergency custody. The videotape showed the mother discussing the sexual abuse allegations with the daughter. Further, the mother allowed her sister to record a conversation with the middle son concerning the allegations. Because these recordings violated a court order which prohibited the parties from discussing the case or allegations with the children or allowing family members to discuss the case or allegations with the children, the father filed a rule for contempt and a motion in limine, seeking to prohibit the videotape's introduction into evidence, the use of any testimony influenced by such tapes, and the children's testimony. The father contended that the mother coached the daughter into falsely accusing him of inappropriate behavior and that the tape and the daughter's tainted statements were then used to garner the negative reports and testimony of Nurse Troy, Ashleigh Stevens, and anyone else who subsequently interviewed the child. Further, it was the father's position that the children's testimony would be contaminated due to the suggestability of the alleged coaching.

A hearing on the rule for contempt was conducted, and the trial court found the mother guilty of two counts of contempt of court. The mother was fined a total of $500 and sentenced to sixty days imprisonment, which was suspended in favor of unsupervised probation for sixty days.

The trial court next considered the father's motion in limine. The court-appointed expert in clinical psychology, Dr. Pellegrin, testified at the hearing, as well as Nurse Troy. In open court on June 7, 2012, the trial court partially ruled on the motion in limine, prohibiting the mother from introducing into evidence or using in any manner the recordings of the children. The trial court referred to the merits the remaining subjects of the motion in limine,

156 So.3d 19

including the children's testimony and the testimony of others who may be influenced by the recordings.

An eleven-day trial, spanning the course of several months, ensued. The trial court heard testimony from the parties; Dr. Pellegrin; Lewis Eaton, an expert in licensed professional counseling and a licensed family therapist who counseled the parties; Nurse Ann Troy; Detective Scott Davis, a detective with the St. Tammany Parish Sheriff's Department who investigated the sexual abuse allegations; and Ashleigh Stevens.

The trial court also considered numerous reports, records, interviews and Dr. Pellegrin's evaluation for custody. By judgment dated December 26, 2012, the trial court prohibited the children from testifying, finding the testimony concerning any alleged abuse was tainted by the mother's manipulation. In oral reasons for ruling, the trial court explained that it was her belief the children were contaminated and were subject to such suggestability that any testimony from them would be unreliable and untrustworthy.

Additionally, once the trial court determined that the daughter was an unavailable witness, it heard the testimony of the maternal grandmother, who was testifying regarding the daughter's initial disclosure of sexual abuse. La.Code Evid. Art. 804(B)(5) excepts from the hearsay rule a “statement made by a person under the age of twelve years and the statement is one of initial or otherwise trustworthy complaint of sexually assaultive behavior,” if the child is unavailable to testify. The record shows the trial court limited the grandmother's testimony to the recitation that the daughter fearfully exclaimed “the bleed, the bleed” when the grandmother attempted to tickle her thighs during playtime. The trial court found this proclamation to be the initial disclosure by the daughter and that any testimony elicited afterward would be inadmissible hearsay. The mother objected and later proffered the grandmother's testimony.

Ultimately, on February 8, 2013, the trial court awarded sole custody of the minor children to the father, providing twenty-six pages of written reasons.² In pertinent part, the trial court stated:

In reaching an opinion in this case, the Court considered all relevant factors, including the twelve non-exclusive factors contained in La. C.C. Art. 134 and makes the following findings on those factors to which there was testimony and evidence placed on the record.

* * *

(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.

While both parents demonstrate ability to give the children love and affection, the testimony at trial hereof establishes that the father has the greater ability to give the children beneficial spiritual guidance grounded in traditional values and to continue their education and

156 So.3d 20

rearing. Religion has played a prominent role in both parents' lives of late, however,

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